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Article 36/2022

On what basis did the labour appeal court recently, in SA Teachers Union obo Kruger v Gauteng Department of Education and Others (2021) 32 SALLR 12 (LAC); (2021) 42 ILJ 827 (LAC), determine that the remedies of compensation and reinstatement cannot be granted simultaneously?

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The principles identified by the court entail, amongst others, the following:

in the case of a dismissal for misconduct or incapacity: being substantively or substantively and procedurally unfair

  • the primary relief is reinstatement or re-employment
  • the employee is to resume employment on the same terms and conditions as at the date of dismissal
  • the extent of retrospectivity is dependent on the discretion to be exercised by the arbitrator – the only limitation on such discretion is that it cannot be fixed earlier than the actual date of dismissal
  • compensation is an alternative relief to the primary relief and is mutually exclusive to the remedies of reinstatement/re-employment

dismissal for operational requirements/automatically unfair: substantively or substantively and procedurally unfair

  • the same principles as set out above apply here subject to s193(3) of the LRA – in addition, any other order may be made as considered to be appropriate

dismissal for misconduct/incapacity/operational requirements/automatically unfair: procedurally only unfair

  • in terms of s193(2)(d) of the LRA, no reinstatement/re-employment is applicable but only compensation
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?